A note on “extraordinary rendition”

The term “extraordinary rendition” is ambiguous. Holsclaw treats it as if it means only the exportation of captives to be tortured, and asserts that its origins are in the Clinton Administration.

He may be right that it was under Clinton that we started outsourcing torture, but “extraordinary rendition” has a second, older meaning as well. It refers to the kidnapping of suspects from other countries for trial in the U.S.: typically, of drug suspects from Latin American countries with which we lack extradition treaties or in which the judiciary or executive branch is so intimidated or so corrupt that we have no hope of being able to process a legal extradition. The subject is therefore “rendered” by “extraordiary” (i.e., extra-legal) means.

This is by no means a recent innovation: it was being used, and not being treated as a novelty, when I worked for the Justice Department late in the Carter Administration and early in the Reagan Administration. U.S. courts had ruled — puzzlingly, at least to me — that they would not inquire into the circumstances under which the accused had been brought within the jurisdiction of the United States, so DEA felt free to snatch bad guys, put them on a plane, fly them in, and “arrest” them on landing. This was almost always done, I was told, with the connivance of some law enforcement officials from the host country, and frequently, though not always, with the tacit acquiescence of its government.

At the time, I found the doctrine troubling, but never formed a clear opinion about whether it might be justified. The practice is surely troubling on symmetry grounds: We’d all be outraged if, e.g., Mexico decided to kidnap U.S. citizens accused of Mexican crimes rather than going through the extradition process. The Ninth Circuit has now ruled that the victim of an extraordinary rendition has standing to sue the United States. (Naturally, the Federalist Society is outraged.)

I don’t know when the term “extraordinary rendition” came to be applied to the reverse processs by which someone lawfully in U.S. hands is transferred out for purposes of torture. But it seems to me that the two practices, though linked by their evasion of judicial review, don’t have the same standing morally and shouldn’t be discussed in the same breath.